Weidel & Weidel - [2022] FedCFamC1F 88

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Weidel & Weidel [2022] FedCFamC1F 88

File number(s):	MLC 4159 of 2020
Judgment of:	STRUM J
Date of judgment:	16 February 2022
Catchwords:	FAMILY LAW – CHILDREN–Best interests of the children – Hearing adjourned – Part heard – Where the Court would be assisted by a psycho-sexual assessment of the father
Legislation:	Evidence Act 1995 (Cth) s.135 Family Law Act 1975 (Cth) s.60CC, .s60CA, s.69ZN, s.69Zw, s.69ZQ. Division 12A.
Division:	Division 1 First Instance
Number of paragraphs:	33
Date of hearing:	14-16 February 2022
Place	Melbourne
Counsel for the Applicant:	Mr Wilson
Solicitor for the Applicant:	RT Legal
Counsel for the Respondent:	Mr Combes
Solicitor for the Respondent:	Rowan Skinner & Associates Lawyers
Counsel for the Independent Children's Lawyer:	Ms Colla
Solicitor for the Independent Children's Lawyer:	White Cleland Lawyers

ORDERS

MLC 4159 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR WEIDEL Applicant
AND:	MS WEIDEL Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	STRUM J
DATE OF ORDER:	16 FEBRUARY 2022

THE COURT ORDERS THAT:

The further hearing of the trial of these proceedings be adjourned part-heard before the Honourable Justice Strum to 14 – 17 and 21 June 2022.
The Husband do all acts and things to enable a psycho-sexual assessment of him (“the assessment”) to be completed by an assessor as agreed between the parties.
In default of agreement as to the assessor to be appointed to undertake the psycho-sexual assessment of the Husband, the assessor be appointed by the Independent Children’s Lawyer.
The assessment include:
(a)An interview of the Husband;
(b)Psychometric testing of the Husband;
(c)A review of the documents provided to the assessor;
(d)A review of the contents of the whole of the D drive; and
(e)Any other material the assessor considers relevant.
The assessor be provided by the Husband’s solicitors with:
(a)All the affidavits filed, including those annexing the reports of other professionals;
(b)The whole of the D drive;
(c)A copy of the Reasons of Judgment delivered this day by the Honourable Justice Strum; and
(d)Any other documents agreed by all parties.
The psycho-sexual assessment address:
(a)The extent, if any, to which the Husband is a risk to the children;
(b)The extent, if any, to which the Husband’s interest in pornography, including fetishist pornography, is likely to affect his parenting of the children, directly and/or indirectly; and
(c)Any other matter the assessor considers relevant to the best interests of the children.
In the first instance, the Husband and the Wife each pay for one half of all costs of the assessment, with leave reserved to them to argue in relation to ultimate liability at trial.
The Wife’s costs of the adjournment this day be fixed in the sum of $4,400.00 and all questions of costs between the parties be reserved to trial.
No further affidavits be filed without the leave of the Court, save for an affidavit by the assessor annexing his/her report, to be filed by the Independent Children’s Lawyer.
Pursuant to r.12.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the Court certifies that it was reasonable for the parties to employ counsel.

AND THE COURT NOTES THAT:

A.The parties intend to mediate in relation to financial matters on 17 or 18 February 2022.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to notify the Judge’s Associate by way of email within 24 hours.
F.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Weidel & Weidel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

STRUM J:

An oral application was made on behalf of the applicant husband mid-morning today, on the third day of the trial, for an adjournment of the proceedings to enable him to undergo a psychosexual assessment. That application is supported by the Independent Children’s Lawyer and opposed by the wife.
On Monday, 14 February 2022, being the first day of the trial, I raised the issue with all counsel as to whether or not a psychosexual assessment had been obtained; I was informed that one had not been undertaken. I expressed then, and again this morning, and now, my surprise at that. I would have thought that it was a fundamental matter to be undertaken in this case, given the factual matrix, but I will take that no further.
Before the luncheon adjournment, I indicated that I would grant the application for an adjournment and these are my reasons.
A constant theme in these proceedings, which were instituted in 2020, has been the husband’s interest in pornography, the extent of which was discovered by the wife after separation. This is addressed at paragraphs 93 to 106 of the wife’s trial affidavit, as well as particularised at annexure MW8 thereto, which is referred to at paragraph 97.
The wife deposes that, shortly after separation, she discovered something called a “D hard drive”, which contained over 7000 images and videos between 2003, being the date of the parties’ marriage, and 2018. For present purposes, I do not need to go into too much detail about the descriptions in the annexure; but suffice it to say that the husband does not appear to take issue with the wife’s descriptions of the contents of the D hard drive. The videos and footage include, by way of example, women drinking urine, women licking faeces, women engaging in sexual acts with dogs and instances of choking and of urination during menstrual periods. I will not elaborate further on that for present purposes.
That issue is addressed by the single expert psychologist, Dr C, in his psychiatric assessment of the husband which is annexed to his affidavit filed on 21 November 2020 as ‘Annexure ‘PF-1’. At paragraph 73 of his assessment, Dr C opines as follows:
The existence of the alleged sexual activities on the videotape and photo-file are not a concern in themselves as they involve adults and not children. However, they imply that Mr Weidel has an idea that “anything goes” in terms of sexual interests, including bestiality and humiliation of women, (e.g., causing women to lick faeces and urine off the floor). I note the similarity of the statements of the mother regarding Mr Weidel forcing X to lick a spill off the floor and the alleged activities of the women, possibly suggesting a wish to humiliate others on the part of Mr Weidel. The alleged behaviour of Mr Weidel towards the mother appears to have had the intent to humiliate her.
Notwithstanding the concerns expressed by Dr C, the single expert Family Report writer, Mr B, opines at paragraph 67 of his first family report dated 24 August 2020:
Insofar as the D drive, an important distinction needs to be made between the content of that drive and the process of that drive. Other than to note that there are a large number of images, these are not in and of themselves relevant. What might be relevant is why they were stored and what it might mean to Mr Weidel that he stored them. When asked directly, he told me that he had no explanation. This too is a curious response given the length of time and number of images. There may or may not be any relevance.
Mr B continues at paragraph 71:
This type of external locus of control may be a significant lynchpin insofar as an entire understanding of this dispute is concerned. It is not the content of the D drive, but the process of what it means in relation to Mr Weidel, his relationship with Ms Weidel and his attitude towards issues of trust, honesty and genuine intimacy. What consenting adults do is not relevant to this dispute; the way in which Mr and Ms Weidel related to each other, both at an interpersonal and parental level is unmistakably relevant.
I interpolate, before I turn to other passages of Mr B’s report. that I agree with him. What consenting adults do in their proverbial bedroom is not necessarily (or even often) relevant as general proposition. However, the matters to which I have briefly referred, in my view, may take this outside of the parameters of Mr B’s observation. Also, as I indicated to all counsel in my exchanges with them this morning, whilst very much cognisant of the fact that I have not heard all the evidence and submissions, I presently struggle to understand how Mr B can say in paragraph 67 that “other than to note that there are a large number of images, these are not in and of themselves relevant”.
Given the matters to which I have referred, I am of the preliminary view that the kind of pornography enjoyed by the husband may be relevant to the exercise which I must undertake in determining this case.
At paragraph 91, Mr B said:
According to Mr Weidel, Ms Weidel is a person who has significant problems with emotional regulation and has deliberately lied about what has transpired in the relationship. He does not resile from the contents of the D drive but curiously portrays this as a separate part of his life that he kept private in an attempt to protect the family. The issue of the content of that drive are a difficult conversation to have with Mr Weidel who was defensive and uncomfortable.
I interpolate here that, on one view, whilst one might understand that last sentence, I am rather of the view that Mr Weidel’s observed defensiveness and discomfort may require some investigation. Mr B continued at paragraph 92, similarly to earlier in his report:
It is not the content of the drive that might be important but the process; by that, I mean issues around his justification, his rationalisation around secrecy and the whole question of honesty and whether it reflects adversely on his character as it pertains to his relationship with Ms Weidel.
Again, whilst I have not heard Mr B’s evidence tested at this relatively early stage in the proceedings, when Mr Weidel’s cross-examination has not concluded and Ms Weidel’s evidence has not yet commenced, I presently struggle to understand Mr B’s opinion that “it is not the content of the drive that might be important but the process”. I also do not understand his observation or query, namely, “whether it reflects adversely on his character as it pertains to his relationship with Ms Weidel”. Of equal, if not greater importance, in my preliminary view, is whether and, if so, how it pertains to his parenting of the two boys aged 14 and 8 years.
As I have indicated, I am troubled, at this stage by Dr C’s concern and I am puzzled by the observations of Mr B. It may well be that my concerns will be assuaged by cross-examination of Dr C and Mr B, but it may not.
Mr Wilson, for the husband, objected to cross-examination of the husband in relation to the D hard drive. The objection, when first made, related to a particular line of questioning. However, given that the D hard drive has been the proverbial “elephant in the (court) room”, certainly since the commencement of the trial and, more generally, since the proceedings were instituted, I invited all counsel to address me more broadly in relation to that issue. Quite properly on the part of Mr Wilson, he did not base his objection on the grounds of relevance or lack of relevance but section 135 of the Evidence Act 1995 (Cth).
I expressed a preliminary view in my exchanges with counsel that, given the conceded relevance of the D hard drive, it was not, in my opinion, outweighed by any of the limbs of section 135. Mr Wilson astutely read the way in which the proverbial wind was then blowing and asked for the matter to be stood down. When court resumed, Mr Wilson made an oral application for an adjournment for his client to undergo a psycho-sexual assessment. As I indicated before the luncheon adjournment, I propose to grant the adjournment application.
As I have said on occasion over the past three days, this is not a court of morals; there may be some who enjoy or are gratified by pornography. I make no judgment whatsoever of the husband for that per se. However, my concern, which is shared by the single psychiatric expert, Dr C, and it would appear by the Independent Children’s Lawyer, given her consent to the adjournment application, – my concern is about the effect the pornography, and in particular, the pornography of the nature to which I have referred above, may have directly or indirectly on the father’s parenting of these two boys.
There is no suggestion whatsoever that the father has viewed child pornography, nor is there any suggestion whatsoever that he has any kind of paedophilic interests. However, I remain acutely conscious of what the single expert, Dr C has raised at paragraph 73 of his assessment and his concerns coincide with those that I voiced on Monday morning.
Section 60CA of the Family Law Act provides that in deciding whether to make a particular parenting order in relation to children – such as how much time is to be spent with one or both of the boys and whether that time is to be supervised, and if so for how long – I must regard the best interests of the children as the paramount consideration. Section 60CC relevantly provides that in determining what is in the children’s best interests, the court must consider the matters set out in subsections (2) and (3) thereof.
In particular, I refer to section 60CC(2)(b); one of the two primary considerations is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Similarly, the additional consideration in section 60CC(3)(f) may be of relevance, namely, the capacity of each of the children’s parents (in particular, the husband) to provide for the needs of the children, including their emotional and intellectual needs.
In short compass, I think it is relevant for the court to know, in determining the issues before it, whether the father’s interest in fetishist pornography of the kind to which I have referred above may be reflective of his view of women and of a tendency to enjoy and derive gratification from the humiliation of women. That is something that is put squarely by Dr C at paragraph 73 of his report.
I note the ages of these boys. In particular, an eight year old, for whom Mr Weidel, as the child’s father, may be a determinative influence on as he approaches his teenage years and puberty. I am conscious of the fact that these are proceedings governed by Division 12A of the Family Law Act and I have regard to the various provisions contained within that division which fortify me in granting the adjournment sought by the father.
Section 69ZN(1) provides that the Court must give effect to the principles in that section in performing duties and exercising powers in relation to child-related proceedings and in making other decisions about the conduct of child-related proceedings. Section 69ZN(2) provides that regard is to be had to the principles in interpreting Division 12A. In particular, I place weight on the second principle of section 69ZN, which is to be found in subsection (4), namely, that:
The Court is to actively direct, control and manage the conduct of the proceedings.
As I have said earlier, this is something I raised on Monday morning. No counsel, at that stage, sought a psychosexual assessment and I did not take the matter further. However, as the proceedings have unfolded, I have been fortified in my view that this is a fundamental piece of the puzzle, as I termed it before the luncheon adjournment, which should have been and, in my view, needs to be addressed.
Further, section 69ZQ (1)(d) provides that in giving effect to the principles in section 69ZN, the court must, in deciding whether a particular step is to be taken, consider whether the likely benefits of taking the step justify the costs of taking it.
For the reasons that I have so far delivered, I am of the view that the likely benefit of taking the step justifies the cost of taking it.
Section 69ZX(1)(a) provides that, in giving effect to the principles in section 69ZN, the court may give directions or make orders about the matters in relation to which the parties are to present evidence. Maybe even more importantly, section 69ZX(1)(d) provides that the court may:
if the Court considers that expert evidence is required - give directions or make orders about:
(i)the matters in relation to which an expert is to provide evidence; and
(ii)the number of experts who may provide evidence in relation to a matter; and
(iii)how an expert is to provide the expert’s evidence;
It is, in particular, upon paragraph (i) that I rely, namely, “the matters in relation to which an expert is to provide evidence”. As will be apparent, I am of the view that there is presently an evidentiary lacuna in this case.
When I raised the issue of any prejudice to the wife occasioned by an adjournment, Mr Combes did not identify any real prejudice. I accept, of course, there will be prejudice to her in that the proceeding will not conclude as promptly as she would wish, and it is not something that I take lightly. However, the proceedings, on any view, would not have concluded this week given that there are some 17 or 18, possibly now 19, witnesses to be called. Indeed, the proceedings may not have even concluded within the two further days that I proposed to allot to this case, on 8 and 9 March.
Neither counsel has indicated – and properly so – that they propose to charge fees for tomorrow or Friday. In fact, they will be able to negotiate or mediate the property and other financial aspects of these proceedings on one of those days. Given the modest pool and that, in my preliminary view, there appear to be no impediments to resolution of that issue. There do not appear to be any valuations issues; it is simply an assessment of contributions and section 75(2) factors. Both the husband and the wife are competently represented and I would be astounded if, as between counsel, there were a real disagreement as to the appropriate range of results.

Of course, I understand that counsel act on their clients’ instructions and, in the unfortunate event for them that they are not able to resolve those issues between them, then I will hear and determine those issues. However, the parties should understand that will lengthen the case somewhat which will, in turn, increase their legal fees.
In fact, it is the husband who will be more prejudiced than the wife by the adjournment, as any prospect of increased and/or unsupervised time will be delayed, as will be the receipt of funds from the sale of the former matrimonial home in which the wife and children live and will continue to live until the resumption of the hearing and the delivery of judgment by me unless, of course, financial issues are settled earlier.
Ultimately, if I do not grant the adjournment for the purpose of the psycho-sexual assessment, the detriment may be to X and Y, because a key piece of evidence, to my mind at present, will not be available. In the circumstances, I will grant the adjournment application. Subject to the convenience of counsel in this part-heard trial I adjourn the matter to 14, 15, 16, 17 and 21 June. I have a one-day matter listed on Monday, 20 June, but I will list this matter on that date, if necessary. Given this is a part-heard trial and given the matters in issue, it will take priority over the one-day matter that I have that day.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum.

Associate:

Dated: 16 February 2022